Judge Michael D. Washington, Case Number: 37-2022-00033608-CU-OR-NC, Date: 2024-05-20 Tentative Ruling

Judge: Michael D. Washington, Case: 37-2022-00033608-CU-OR-NC, Date: 2024-05-20 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - May 10, 2024

05/10/2024 01:30:00 PM N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael D Washington

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Civil - Unlimited Other Real Property Discovery Hearing 37-2022-00033608-CU-OR-NC PACIFIC MANAGEMENT GROUP INC VS SCHAU [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 03/25/2024

The Motion to Compel Further Responses to Form Interrogatories (Set One) brought by plaintiffs/cross-defendants Pacific Management Group Inc. (PMG or the Panama Corporation) and Ronald Fleming (Mr. Fleming) (collectively, Plaintiffs) is DENIED.

The Request for Monetary Sanctions brought by defendant/cross-complainant John Schau (Mr. Schau) in opposition is GRANTED in the reduced amount of $1,962.50. Said sanctions are to be paid by Plaintiffs and sent to Attorneys Aaron Sadock and Bonnie McKnight of Panakos Law APC at 555 West Beech Street, Ste 500, San Diego, California, 92101 by no later than Friday, May 24, 2024.

Merits of Motion This matter came on for hearing on an Ex Parte Application for Continuance of Trial on April 16, 2024.

(ROA 263.) The Minutes from that hearing indicate as follows: The Court reserves ruling on Plaintiffs'/Cross-Defendants' Ex Parte Application for Continuance of Trial until the Trial Readiness Conference hearing.

Trial Readiness Conference set for April 26, 2024 at 10:45 am is confirmed.

The Court instructs counsel to meet and confer to discuss availability of all parties.

Additional depositions may [be] taken until the Trial Readiness Conference date.

Mr. Saddock to provide notice.

Defendant/cross-complainant John Schau (Mr. Schau) thus argues that the Court 'extended motion and discovery cutoff to April 26, 2024.' (ROA 26, p. 3:13-14 (citation omitted).) As a matter of law: 'Cut-off' on discovery before trial: The Discovery Act imposes two separate 'cut-offs' on discovery.

Unless otherwise ordered: --Discovery proceedings must be 'completed' 30 days before the date initially set for trial [internal citation], and --Discovery motions must be heard no later than 15 days before the date set for trial. [CCP § 2024.020(a)]...

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3105267 CASE NUMBER: CASE TITLE: PACIFIC MANAGEMENT GROUP INC VS SCHAU [IMAGED] 37-2022-00033608-CU-OR-NC (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group, 2023) ¶ 8:445.) Mr. Schau now cites authority for the proposition that: ...if a party properly notices a discovery motion to be heard on or before the discovery motion cutoff date, that party has a right to have the motion heard. By negative implication, a party who notices a discovery motion to be heard after the discovery motion cutoff date does not have a right to have the motion heard.

Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1586 (emphasis in original).

This Court extended the window of time to conduct depositions until the date of the Trial Readiness Conference, which was April 26, 2024. Plaintiffs set this motion to be heard on May 10, 2024. This is past the cut-off date and, under Pelton-Shepherd, it would be an abuse of discretion for this Court to address the merits of the motion without first receiving a formal motion requesting leave to reopen discovery and extend the cut-off for having discovery motions heard.

The Court additionally notes that Plaintiff, the moving party, failed to file a timely reply brief on this motion. Instead, Plaintiff filed a reply brief on Tuesday, May 7, 2024 at 7:19 p.m. – which, because of the 'after hours' time, is effectively Wednesday before the Court can review the filing – two days before the hearing and only one day before the tentative ruling is to be posted. This kind of lateness significantly hampers judicial efficiency and is to be admonished. However, even if this Court were to exercise discretion and consider the late-filed reply, the reply fails to address time timeliness issue raised in the opposition brief. As such, even if there are ways this Court could get at the merits of the motion despite the timing issue, Plaintiff's own failure to provide such reasons, in addition to Plaintiff's failure to file a timely reply, leave this Court to simply enforce the objection raised by Mr. Schau regarding the timing of the motion.

Lastly, the Court notes that Mr. Schau seeks $3,237.50 in attorney fees and costs as a monetary sanction for having to oppose the instant motion. The opposition brief is less than six pages. While page numbers alone are not the measure of what is warranted to litigate a matter (i.e. the Court does not mean to suggest that a longer brief would have warranted additional sanctions if that length was purely for the sake of length), the matter in dispute appears to the Court to be a relatively simple one. As such, the Court reduces the time frame to match the following estimates: 1 hour of attorney time to review the moving papers, 2 hours of attorney time to draft the opposition brief, 1 hour of attorney time to review the reply and appear at the hearing (without accounting for travel time given the prevalence and availability of remote appearances), and 1.5 hours of paralegal time. With attorney time at a rate of $450.00 and paralegal time at a rate of $175.00, the subtotals come to $1,700.00 in attorney time and $262.50 in paralegal time for a total of $1,962.50.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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3105267